Summary
In Teche Lines, Inc. v. Bateman, 162 Miss. 404, 139 So. 159, a bus company was held liable to an automobile passenger whose eye was injured when struck by a piece of rock or gravel that came through the automobile windshield when a bus passed at a speed of 40 miles or more on a gravel road.
Summary of this case from LeTourneau v. KrookOpinion
No. 29747.
January 18, 1932.
1. HIGHWAYS.
Traveler on highway assumes risk incident to travel in reasonable and lawful manner.
2. AUTOMOBILES.
Motorist exceeding legal speed limit, and as result inflicting injury on another, is liable therefor (Code 1930, section 5569).
3. AUTOMOBILES.
Every motorist owes duty to every other traveler to exercise reasonable care to prevent injury and operate motor vehicle in accordance with statutes.
3. AUTOMOBILES.
Motorist on gravel highway is bound to know that rocks are likely to be hurled with more or less violence according to speed and weight of car, and may injure others.
5. NEGLIGENCE.
Where violation of statute causes injury which can reasonably be anticipated, or where some injury can be anticipated, liability therefor accrues.
6. CONSTITUTIONAL LAW.
That numerous suits may be filed for violations of statute regulating speed of automobiles, and difficulty of defending claims, should be addressed to legislature, not to court (Code 1930, section 5569).
7. AUTOMOBILES.
Bus company was liable for injury to automobile occupant if proximately caused by gravel thrown by bus because of its reckless negligence and excessive speed (Code 1930, section 5569).
8. DAMAGES. Instruction permitting jury to consider mental anguish in assessing damages for loss of eye in automobile accident held not objectionable under circumstances.
The instruction was not objectionable under circumstances, since whatever difference there may be in physical and mental suffering resulting from physical injury accompanied by pain, facts clearly showed that mental anguish suffered by plaintiff was result of physical suffering caused by injury.
9. DAMAGES. Twelve thousand dollars verdict for twenty-eight year old married trained nurse for injury causing permanent loss of sight of eye held excessive by five thousand dollars.
Facts disclosed that prior to injury plaintiff was employed as nurse at one hundred dollars a month, and that she was deprived of employment for four months by reason of the injury, and that since that time she was replaced on registered list of nurses and engaged in occupation, but she stated that she did not take long and difficult cases.
APPEAL from circuit court of Hancock county. HON.W.A. WHITE, Judge.
Robt. L. Genin, of Bay St. Louis, and Hugh V. Wall, of Brookhaven, for appellant.
The court erred in granting the following written instruction for the plaintiff.
The court instructs the jury that if you believe from a preponderance of the evidence in this case, that the plaintiff herein was injured by flying gravel thrown from a bus belonging to the defendant herein, while said bus was travelling at a reckless, negligent and excessive rate of speed, and that the gravel was thrown by said bus because of the reckless, negligent and excessive rate of speed at which said bus was being driven at said time, and that the reckless, negligent and excessive rate of speed of said bus, if any, was the proximate cause of said injury, then you shall find for the plaintiff.
It is not every act resulting in injury to another that subjects the person doing the act to liability for the injury and damages resulting therefrom. The act must be of such a character that the person doing it should reasonably anticipate that some injury to another will probably result therefrom.
D'Antoni v. Albritton, 126 So. 836, 156 Miss. 758; Wilborn v. Charleston Cooperage Co., 127 Miss. 290, 90 So. 9; Burkes v. Lieberman, 218 N.Y. Sup. 583, 15 N.E. 865.
The court erred in granting the following instruction for the plaintiff.
The court instructs the jury for the plaintiff, that if you believe from the preponderance of the evidence that the defendant is liable to the plaintiff in this action, then in assessing damages against the defendant, you may take into consideration the pain and suffering of the plaintiff, her mental anguish, if any, the bodily injury sustained by her, her pecuniary loss, her loss of power and capacity of work, if any, and its effect upon her future.
This instruction also permits the jury to assess damages for mental anguish disconnected or separate, or in addition to physical pain and suffering.
Bonelli v. Branciere, 127 Miss. 556, 90 So. 245; Dorrah v. I.C.R.R. Co., 65 Miss. 14, 3 So. 367, Am. St. Rep. 629.
There is no positive evidence showing that the bus threw the pebble complained of. It is only a conjecture, a guess, a supposition, or an inference.
De Glopper v. Nashville Railway Light Company, 123 Tenn. 633.
It was not an injury that could have been foreseen or reasonably anticipated as the probable result of the running of the bus at a greater rate of speed than was allowed by law.
Burkes v. Lieberman, 218 N.Y. Sup. 593, 157 N.E. 865; Cole v. German Saving Loan Association, 124 Fed. 113, 59 C.C.A. 593, 63 L.R.A. 416; Lewis v. St. Louis Independent Packing Company et al., 3 S.W.2d Series 244.
Even though defendant's driver was negligent in driving to the left in violation of the ordinance, defendant cannot be required to respond in damages if the injury to deceased was caused by an occurrence over which the driver had no control and which he could not reasonably have foreseen as the result of such negligence.
Daneschocky v. Sieble, 195 Mo. App. 470, 193 S.W. 966; Brock v. Mosler Safe Company, 288 Mo. 83; De Moss v. Kansas City R.R. Co., 296 Mo. 526; Gant v. Gant, 148 S.E. 34; Fore v. Geary, 191 N.C. 90, 131 S.E. 387; Burkes v. Lieberman, 218 N.Y.S. 593, 218 App. Div. 600; Southern Utilities Company v. Matthews, 93 So. 188, 84 Fla. 30; De Glopper v. Nashville Railway Light Co., 123 Tenn. 633 (1911); Rolands v. Morphis, 130 So. 906, 158 Miss. 662; Pounders v. Day (Miss.), 118 So. 298; Hattiesburg Chero-Cola Bottling Co. v. Price, 106 So. 771, 141 Miss. 892; 108 So. 291, 153 Miss. 14; Eichman v. Buchheit, 128 Wis. 385, 107 N.W. 325, 8 Ann. Cas. 435.
Violation of a legal duty by a driver on the highway does not necessarily carry with it liability for an injury caused by his car for to incur such liability the violation must have been the proximate cause of the injury concerning which complaint is made.
Hester v. Coliseum Motor Company, 285 Wyo. 781; Feague v. Alabama Co-Co-Bottling Co., 209 Ala. 205, 95 So. 883; Huddy Ency. of Automobile Law, 3-4, pp. 44, 45; Friedman v. Hundler Creamery Co. (Md.), 148 A. 426-431; Sutton v. Hank, 108 Conn. 9, 142 A. 385; Huddy Ency. A.L. 49; Maloney v. Kaplan, 223 N.Y. 426, 135 N.E. 833; Huddy Ency. of A.L. 3-5, p. 51.
Assuming for the sake of argument that the bus was being driven at a speed in excess of that fixed by the statute, the negligence charge was not the proximate cause of the injury. The gravel or pebble, was an independent disturbing agency intervening.
Louisville N.R. Co. v. Daniels, 135 Miss. 33, 99 So. 434.
The court erred in permitting the excessive verdict of twelve thousand dollars to stand.
Cotton Mill Products Company v. Oliver, 153 Miss. 362, 121 So. 111; P. Lorillard Co. v. Clay, 127 Va. 734, 104 S.E. 384.
Upon the question of negligence in the operation of motor vehicles we are aware of section 5588 of the Code of 1930, known as the prima facie statute and we call the court's attention to it with the suggestion that in our opinion it does not apply in this case. First, that the prima facie statute would have no application to an alleged injury caused by a passing vehicle picking up a pebble or rock and by the turning of the wheel the rock or pebble is released and flies against the windshield of another car going in an opposite direction. Second, the prima facie statute has no application for the reason that the violation of the statute would have to be the proximate cause of the alleged injury.
New Orleans G.N.R.R. Co. v. Walden, 133 So. 241; Western Atlantic R.R. Co. v. Henderson, 279 U.S. 639, 73 L.Ed. 884; Rowlands v. Morphis, 130 So. 906.
In order to constitute actionable negligence there must exist three essential elements, namely, a duty or obligation which the defendant is under to protect the plaintiff from injury; a failure to discharge that duty; and injury resulting from the failure. Not only must the complaint disclose these essentials but the evidence must support them and the absence of proof of any of them is fatal to recovery.
What duty did appellant owe appellee under the facts in this case? It owed her the duty to stay on or be on the right hand side of the road and to so use its property right in the road as a reasonably prudent man would do, and the record discloses that the appellant was operating its bus in accordance with the rules of the road and that it was operating the bus just as a reasonably prudent man would have done. He therefore discharged every duty that he owed the appellee.
This is not a case in which the mere proof of the accident casts upon the appellant the burden of showing the real cause of the injury.
Wabash R.R. Co. v. Lock, 2 Am. Rep. 193; Baker v. Fehr, 97 Penn. St. Rep. 70; Noland v. Scheckle, 3 Mo. App. 300; Shultz v. Pacific R.R. Co., 36 Mo. 13-32; Rowlands v. Morphis, 130 So. 906; N.O. G.N.R.R. Co. v. Walden, 133 So. 241; Mitchell v. Chicago Railroad Company, 51 Mich. 236, 47 Am. Rep. 566.
The proper inquiry is not whether the accident might have been avoided if the appellant had anticipated its occurrence, but whether, taking the circumstances as they then exist, the appellant was negligent in failing to anticipate and provide against the occurrence.
Beatty v. Central Iowa R.R. Co., 48 Iowa, 242, 8 Am. Eng. R.R. Cases, 210.
When the evidence fails to establish the defendant's duty or its nonperformance — that is, when the evidence is evenly consistent with the existence or nonexistence of negligence, then there is no evidence which justifies the jury in finding negligence.
Toledo R.R. Co. v. Brannegan, 75 Ind. 490; Searles v. Manhatten R.R. Co., 101 N.Y. 661; Patterson on Railroad Accident Law, sec. 373.
The evidence must affirmatively establish circumstances from which the inference fairly arises that the accident resulted from the want of some precaution which the appellant ought to have taken.
Hayes v. Michigan R.R. Co., 101 U.S. 228; Metropolitan Railroad Co. v. Jackson, L.R., 3 App. C. 193.
The speed of the bus was not the proximate cause of the injury.
Under the Mississippi Code, section regulating speed of motor vehicles, in order to justify a recovery for injuries under certain conditions, it is necessary that the injury must have been proximately caused by the violation of the statute.
Pounders v. Day, 118 So. 298; Greyhound Lines, Inc., v. Noller, 36 F.2d 443; 22 R.C.L. 119, 120, 121, 124; Baltimore P.R.R. Co. v. Jones, 95 U.S. 439 (24 L.Ed. 506); Hubbard v. Bartholomew, 49 L.R.A. (N.S.) 443; Buck v. Creamery Package Manufacturing Company, 106 Am. St. Rep. 377; 22 R.C.L. 126.
Appellee assumed the risk of the alleged accident complained of.
Sec. 513, Code of 1930.
People as they go along public roads must put up with such mischief as reasonable care on the part of others cannot avoid.
Brown v. Collins, 16 Am. Rep. 372; De Glopper v. National Railroad Light Co., 123 Tenn. 633; Burkes v. Lieberman, 218 N Y Supp. 593; D'Antoni v. Albritton, 126 So. 836, 156 Miss. 758.
W.J. Gex, of Bay St. Louis, for appellee.
Where an act or omission is negligent, it is not necessary to render it the proximate cause that the person committing it could or might have foreseen the particular consequences or precise form of the injury, or the particular manner in which it occurred, or that it would occur to the particular person, if by the exercise of reasonable care it might have been foreseen or anticipated that some injury might result. As otherwise stated, it is sufficient that the consequence attributable to the negligent act or omission was the natural and probable result thereof, although it might not have been specifically contemplated or anticipated.
45 C.J., 918.
All questions of negligence and contributory negligence shall be for the jury to determine.
Sec. 512 of the Code of 1930.
In order that a person may be liable for damages resulting from his negligence, it is not necessary that his negligence should have been the sole cause of the injury.
Railroad Company v. Hicks, 91 Miss. 273; 219 U.S. 39, 55 L.Ed. 78.
When a thing which has caused an injury is shown to be under the management of the party charged with negligence, and the accident itself affords reasonable evidence, in the absence of an explanation by the party charged, that it arose from the want of proper care.
De Glopper v. Nashville Ry. Light Co., 134 S.W. 609; Texas P. Ry. Co. v. Carlin, 111 Fed. 777, 189 U.S. 355, 47 L.Ed. 189; Fletcher v. Baltimore P.R. Co., 168 U.S. 137, 42 L.Ed. 411.
The true rule is that what is the proximate cause of an injury is ordinarily a question for the jury.
Milwaukee St. Paul Ry. Co. v. Kellog, 94 U.S. 469, 24 L.Ed. 256.
Physical science teaches that a rapidly moving body creates a partial vacuum in its path, which draws to such body objects near its path, and which objects are carried or thrown forward with a force proportionate to the rapidity of its movement, and of such fact this court will take judicial notice.
17 Am. Eng. Ency. Law 909; S.A. A.P. Ry. Co. v. Mertenk, 102 S.W. 153.
We feel it hardly necessary to argue on the question that the appellant was the company liable because the undisputed testimony is to the effect that it was its operation, that the driver who caused the injury was driving the bus of the defendant company, etc.; however we submit that at best that was a question for the jury and that the jury has settled that.
Finkbine Lbr. Co. v. Cunningham, 101 Miss. 292.
The verdict of the jury is not excessive.
Williams Yellow Pine Company v. Henley, 155 Miss. 893; Cotton Mills Products Co. v. Oliver, 153 Miss. 362; P.L. Lorrillard v. Clay, 127 Va. 734, 104 S.E. 384; Easterling Lumber Co. v. S.W. Pierce, 106 Miss. 672; Mississippi Central R.R. Co. v. Lott, 118 Miss. 816; Y. M.V.R.R. Co. v. Dees, 121 Miss. 439; Yazoo City v. Loggins, 145 Miss. 793; Laurel Light Ry. Co. v. Jones, 137 Miss. 143; A. V. Ry. Co. v. Dennis, 128 Miss. 298; Meade v. Oakland High School District of Alameda County, 211 P. 874.
The principle is established that when the evidence in a case shows that there will be future effects from an injury, an instruction which justifies an inclusion of them in an award of damages is not error.
Washington G.R. Co. v. Harmon (Washington G.R. Co. v. Tobriner), 147 U.S. 571, 37 L.Ed. 284, 13 Sup. Ct. Rep. 557; McDermorr v. Severe, 202 U.S. 600, 50 L.Ed. 1162, 26 Sup. Ct. Rep. 709; Norfolk W.R. Co. v. Earnes, 229 U.S. 114, 119, 57 L.Ed. 1096, 1100, 33 Sup. Ct. Rep. 654, Ann. Cas. 1914c 172.
Argued orally by Hugh V. Wall and Robert Genin, for appellant, and by W.J. Gex, for appellee.
The plaintiff, Mrs. Velma Bateman, brought suit against the Teche Lines, Incorporated, for an injury to her eye occasioned by a piece of rock or gravel being thrown violently through the windshield of the car in which she was riding and striking her in the eye and injuring the cornea so as to practically cause the loss of sight in said eye, except to distinguish between light and darkness. The injury also prevents the dilation and contraction of the pupil of the eye, resulting in an excess of light into the eye, which causes her suffering and pain.
It appears that the plaintiff and her husband were proceeding north on highway No. 11 and they met the bus of the Teche Lines, Incorporated, coming south, and just as the radiators of the bus and the car were about to meet the rock or gravel was violently hurled against the windshield, penetrating the same and striking plaintiff's eye. According to the testimony of the plaintiff and her husband, the bus was traveling at a rate of speed from fifty to fifty-five miles per hour and was throwing rocks with considerable force. They testified that the husband of the plaintiff, who was driving the car in which plaintiff and he were riding, slowed down to about ten or fifteen miles per hour and pulled to the right of the road as far as he could. The bus was on the right-hand side of the road going south, but did not slow down its speed in passing the car in which the plaintiff was riding.
The testimony for the defendant was to the effect that the bus was traveling at about thirty-five miles per hour, and that the driver thereof did not know the injury was inflicted at the time and only heard of it subsequently; that the bus was equipped with a governor which automatically kept the speed at a rate not exceeding forty miles per hour. The driver testified that it was impossible to run at a greater rate of speed than forty miles per hour with the governor equipment.
A witness who drives a school truck on highway No. 11 testified for the plaintiff that he had on a number of occasions tried to keep up with the bus, operating his own car at forty-five miles per hour, but that the bus could outdistance him at that speed. He testified that on the morning the injury was inflicted he met the bus and that it was throwing gravel, and that he heard of the accident the same day.
As to the injury of the plaintiff the physician who treated her testified: "On August 13, 1930, Mrs. C.E. Bateman, consulted me professionally for treatment of a condition of her right eye which she told me had been injured through being struck by a flying rock which came through the windshield of her car, as she was passing another vehicle on a graveled highway. Examination disclosed that she was suffering with an injury to the cornea of the right eye, it being denuded of its corneal tissue, which is the transparent membrane of the eye — the colored part of the eye, through which we see. The condition was very painful, and the patient developed an inflammation of the eye, as an incident of the condition. I treated the case for about two months. The injury was healed, but scar tissue has formed that entirely obstructs the vision, and there is a paralysis of the pupillary sphinchters, which admits excessive light into the eye, causing irritation. To relieve this latter condition, I have equipped the patient with a dark lens on that side. While the wound has healed, in my opinion, the injury to the eye, resulting in a loss of vision, except for perceiving light and dark, is permanent."
The plaintiff, testifying as to the injury of her eye, stated that she could not see very well. She was a trained nurse by profession, twenty-eight years of age, and in good health. The jury found for the plaintiff and returned a verdict for twelve thousand dollars.
The first assignment of error is that the court erred in granting the plaintiff the following instruction: "The court instructs the jury that if you believe from a preponderance of the evidence in this case, that the plaintiff herein was injured by flying gravel thrown from a bus belonging to the defendant herein, while said bus was traveling at a reckless, negligent and excessive rate of speed, and that gravel was thrown by said bus because of the reckless, negligent and excessive rate of speed at which said bus was driven at said time, and that the reckless, negligent and excessive rate of speed of said bus, if any, was the proximate cause of said injury, then you shall find for the plaintiff."
It is insisted that the reckless speed of the bus, if it be conceded that the bus was traveling at a reckless speed, had no causal relation to the injury, and that the defendant could not anticipate the injury would result from such rate of speed where the bus was traveling upon its proper side of the highway. In other words, it is insisted that the injury could not be reasonably anticipated, and that it would be unduly extending the doctrine of negligence to make it an actionable negligence for an injury resulting from displaced rocks caused by operating a motor vehicle at a high rate of speed.
Section 5569 of the Code of 1930 provides that: "No person shall operate a motor vehicle on a public highway, or street, avenue or alley of any city, town or village in this state at a greater rate of speed than is reasonable and proper, having due regard to the traffic and use of the highway; or so as to endanger the life or limb of any person or the safety of any property; or in any event on any public highway where the territory contiguous thereto is closely built up, at a greater rate of speed than twenty miles per hour, or elsewhere in any municipality at a greater rate of speed than twenty miles per hour, or elsewhere outside of any municipality at a greater rate of speed than forty miles per hour, but trucks shall not in any event operate at a greater rate of speed than thirty miles per hour. Provided, that the governing authorities in municipalities, may prescribe the traffic rules within the corporate limits of the municipality and regulate the speed and fix the speed limit at which motor vehicles may be operated within the corporate limits. . . ."
Of course, it is the duty of every person who operates a vehicle upon the highway to do so in accordance with the law of the land. The statute was enacted for the public safety and to secure the safety by reasonable operation of motor vehicles. It is well known that cars proceeding at a high rate of speed on gravel roads throw gravel by reason of the force of the car striking the gravel, or by reason of the suction of the car; and it is well known that such flying gravel or small rocks are calculated to inflict injury. The greater the rate of the speed the more violent the hurling of such gravel or rocks becomes. It may be safely assumed that a person traveling the highway assumes the risk incident to travel in a reasonable and lawful manner, but when a person exceeds the speed limit allowed by law and as a result of such excessive speed injury is inflicted upon another using the highway, such party is liable for the injury occasioned thereby. Every person driving a motor vehicle upon public highways is under duty to every other person traveling such highway to exercise reasonable care and caution to prevent injury and to operate the motor vehicles in accordance with statutes prescribing the rights and duties of persons upon such highways.
The fact that the suit may be one of first impression in this state, or one of novelty in the specific injury, does not take it from the general rules governing liability for breach of duty of one person to another. It is a well-known fact that cars may be operated on some characters of highways without danger from the source of injury here involved. On a concrete or other smooth-surfaced highway missiles are not usually hurled by the car in its operation, but a person traveling on a gravel highway is bound to know that missiles are liable to be hurled with more or less violence according to the speed and weight of the car, and are bound to know that such rocks may cause injury to others. Where the violation of a specific statute causes injury, and where such injury can reasonably be anticipated, or some injury can be anticipated, from such violation, liability for the injury accrues.
It is immaterial to the consideration of the case to consider that numerous suits may be filed for such violations, and that it may be difficult for the defendant to defend claims made along this line. These are considerations to be addressed to the legislative department. We do not think the instruction applied to the facts in this case is erroneous.
The second instruction complained of reads as follows: "The court instructs the jury, for the plaintiff, that if you believe from a preponderance of the evidence that the defendant is liable to the plaintiff in this action, then in assessing damages against the defendant, you may take into consideration the pain and suffering of the plaintiff, her mental anguish, if any, the bodily injury sustained by her, her pecuniary loss, her loss of power and capacity of work, if any, and its effect upon her future."
We see no objection to this instruction as applied to the facts in this case. Whatever difference there may be in physical and mental suffering resulting from physical injury accompanied by pain, the facts in this case show clearly that the mental anguish was a result of physical suffering caused by the injury.
It is argued that the court should have given a peremptory instruction for the defendant. We think what we have already said disposes of this assignment of error. It is also plain that the verdict and judgment for twelve thousand dollars for the injury is excessive. It is always a matter of some difficulty and delicacy for an appellate court to pass upon the amount of money that should be paid for personal injuries. Still it is the duty of the court to carefully consider such questions in proper cases. In the present case the plaintiff was employed, prior to her injury, as a nurse and received one hundred dollars a month compensation. She was deprived of her employment for four months by reason of the injury. Since this time she has been replaced on the registered list of nurses and engages in her occupation, but says that she does not take long and difficult cases. She was twenty-eight years of age and married. The injury to her eye does not prevent her from pursuing her occupation. A great many cases are collected in the briefs bearing on the amount of verdicts upheld as to injuries to the eye or loss of an eye. Of course, this depends somewhat upon the occupation or business of the person injured, but the average seems to be around five thousand dollars for different characters of injuries shown in the cases. While there was considerable suffering, and some continued suffering, in the present case, we think the verdict is excessive to the extent of five thousand dollars. If the appellee will remit the judgment down to seven thousand dollars, the judgment will be affirmed. Otherwise it will be reversed and remanded for the proper assessment of damages by another jury.
Affirmed with remittitur.